GENERAL LAND USE LAWS AND RELIGIOUS BUILDINGS: The Controversy Heats Up

This Term, the Supreme Court has declined to review three related cases, each of which involved the applicability of land use regulations to buildings used for religious purposes. In all three cases, the lower courts sided with the church — not the neighbors — and the Court let the pro-religion decision stand.

The first involved Massachusetts' rule exempting buildings used for religious purposes from zoning restrictions, especially location restrictions. The second raised the question of whether a church school could receive special treatment under Maryland land use laws. The third addressed California's law giving churches full discretion to decide whether to abide by historic preservation rules.

Land use and religious buildings will be one of the next big issues, political and legal, for the country. If you're not yet convinced, consider the numerous other, similar laws on the books — ones that would exempt church child day care centers from state oversight requirements, and others that allow tax exemption for properties not used for worship. Consider also that well-heeled organizations have mobilized to pay for churches to litigate land use determinations that impede their ability to take full and daily use of their buildings.

And recall that last year, Congress passed the Religious Land Use and Institutionalized Persons Act. The Act prohibits local governments from applying generally applicable land use laws to buildings used for religious purposes, unless the government can prove a compelling interest justifies the law, and the law is the least restrictive means of achieving that purpose.

The Act is now a factor in countless disputes between land use authorities and religious buildings across the country. What we have is a lot of seemingly good deals for religious buildings, and a lot of angry neighbors. That is, of course, not the ideal scenario.

Why this conflict, and why now? There are a number of sociological reasons.

First, churches have left behind the notion that their buildings are just for worship, and worship on only one day a week, with maybe a choir rehearsal one evening per week. Instead, churches and synagogues and mosques (as President Bush's faith-based organizations proposal highlights) are using their buildings more than ever for purposes well beyond worship.

Examples include uses for youth groups, child day care, senior care, Alcoholics Anonymous, homeless outreach, soccer leagues, baseball leagues, coffee houses, and, of course, prayer meetings and mid-week worship, which are quite common. The more use a church gets, the more it impacts on its neighbors, and the more residential neighbors become concerned about negative secondary effects like traffic, noise, and light pollution.

Second, and this has been true for ages, the family home is often the single most important investment a family makes. Its likely neighbors? Other homes, and religious buildings, which often are located in residential areas.

Families hope that their homes will be places where they can find peace and quiet, and get away from the world. They are also very concerned, understandably, about their children's safety when they play outside. If large crowds of people, many of them strangers, come and go from a nearby building, families may feel their homes have been disrupted. When parking lot and playing field spotlights shine into their bedrooms well into the night, they feel robbed of the peaceful enjoyment of their property.

Third, the political power of religious organizations to obtain special treatment is remarkable in this era. They persuade legislators to pass special laws like the California historic-preservation exemption that the Supreme Court refused to review, fund litigation under pre-existing exemptions, and lobby for laws like the Religious Land Use and Institutionalized Persons Act.

When these three factors come together, conflict would seem to be inevitable.

Then in 1993, the Court further clarified in Church of Lukumi Babalu Aye v. City of Hialeahthat while laws could be applied to religious organizations, they had to be applied neutrally. There, the Court held that a local government could not discriminate against a religious organization, even when its beliefs fell well beyond the mainstream.

This pair of holdings came as both good news and bad news for local governments. On the one hand, if they applied their laws evenhandedly, they could apply them even to religious entities. On the other hand, though, they were put on strict notice that treating any religion less well than any other would get them into trouble.

Before 1990, local governments did not have to think in terms of evenhandedness, but rather tended to make decisions on a case-by-case basis — which usually made sense, since parcels of land, and the rights attached to them, can differ greatly. Now, though, if local governments want to apply their land use laws to religious entities, they need to examine their past rulings with some care to show evenhandedness.

More generally, they must conduct themselves in such a way that they can defend against anticipated claims of religion-bias — claims that laws like the federal Act virtually invite, since the Act repeats the Free Exercise Court's mandate against discriminatory treatment and allows religions to demand proof of a compelling interest every time land use regulations are applied to them.

Some jurisdictions have engaged in the sort of clear discrimination against a particular faith found in Lukumi Babalu Aye, thereby violating the Free Exercise Clause. But that does not appear to be common practice in the vast majority of jurisdictions.

Rather, most jurisdictions are simply sincerely trying to serve all of the interests of all of the parties on either side of the real property line boundary. When neighbors are upset, their city representatives want to help; when churches are upset, the same representatives want to help. As is always the case with land use decisions, finding a middle ground that will optimally serve all involved is, and ought to be, paramount.

The disputes come in all varieties, with legitimate concerns on both sides of the fence. For example, serious concerns about traffic in a residential neighborhood are met by a sincere need on the part of the congregation to expand its core mission activities. And understandable objections to light and noise pollution are countered by the needs of the children in nighttime or weekend youth groups to engage in wholesome, if loud, activities.

The Religious Land Use Act tips the balance in favor of the churches in such disputes, with a pay off yet to be seen. On the one hand, it certainly scares off any local government that might be inclined to slide into discriminatory rulings. But on the other hand, it reinforces the rancor between home-church neighbors by giving one an early incentive to litigate and less incentive to find a middle ground.

The Supreme Court will have other land use and religious building decisions before it soon, especially as the Religious Land Use Act cases move up the appellate ladder.

Earlier conflicts led the federal courts into the task of judging land use laws against federal constitutional requirements. Now, the Religious Land Use Act will lead the federal courts into new territory: intervention in the application of local land use laws themselves.

As a legal matter, the Act will face a serious federalism challenge; federalism suggests that certain inherently local topics are the states' exclusive concern, and what is more inherently local than land? Yet, even if the Act is invalidated, as it should be, the network of local and state land use exemptions will continue to challenge the courts.

The most important policy question facing the nation regarding land use and religion will be how residential neighbors feel about their religious building neighbors–and vice versa–ten years from now.